Maryland PBJ is a “Prior Offense” of DUI in Pennsylvania

Almost eveyrone that is arrested in Pennsyvlania for suspicion of DUI immediately heads to Google to search.  They want to know what is going to happen and what penalities will be imposed for a conviction.  There are very severe mandatory minimum sentences for a Pennsylvania DUI conviction, and those sentences are increased substantially if the person has “prior offense” of DUI within the past 10 years.  For people with out-of-state DUI cases, the next question is whether or not Pennsylvania will treat those out-of-state DUIs as a “prior offense” of DUI in Pennsylvania.

Maryland PDJ Is a “Prior Offense” of DUI in Pennsylvania

In the case of Commonwealth v. Hayes (3 MDA 2021), the Pennsylvania Superior Court ruled that a probation before judgement (PBJ) disposition in Maryland for a DUI offense would be considered a “prior offense” of DUI in Pennsylvania.  Hayes analogized his PBJ disposition to Pennsylvania’s ARD program because both programs allowed the defendant to avoid a conviction.  In 2020, the Superior Court issued a decision holding that ARD was not a prior offense of DUI, so the defendant in Hayes argued that the PBJ disposition should also not be considered a prior offense of DUI in Pennsylvania.

In the Hayes case, the Superior Court focused on the Maryland law that explained PBJ, and that law stated that Maryland district courts have to power to stay or defer the imposition of a sentence and the place the defendant on probation if the defendant gave written consent after a determination of guilt or acceptance of a nolo contendre plea.  If the defendant violated the terms of probation, the court could then proceed immediately to sentencing because the defendant had already been found guilty.  This is a situation in which legal terminology is important.  Many people use the words convicted and guilty plea interchangeably.  Technically, there is a difference.  A person normally pleads guilty or is found guilty after a trial, and the judge later imposes a sentence.  It is the imposition of a sentence that is normally considered a “conviction” or “final judgement.”  With PBJ, the person is found to be guilty, but the person is not convicted.

With a Pennsylvania ARD disposition for a DUI, the person pleads not guilty, so there is no finding of guilt.  Upon completion of ARD, the defendant has the ability to file paperwork to have the charges dismissed and then expunged.  If the person is removed from ARD, the person still has the right to fight the charges because there was no finding of guilt.  The Hayes Court ruled that PBJ and its finding of guilt made it different from ARD and held that PBJ for a Maryland DUI was a “prior offense” of DUI in Pennsylvania.

Difference Between Pre-Trial and Post-Trial Programs

This case is an example of how another state’s laws impact the handling of a Pennsylvania DUI.  While both the ARD and PBJ dispositions allow a person to avoid a “conviction” by successfully completing the program, the programs are not the same in reaching the ultimate resolution.  This issue also arises when a person is considering whether or not a prior out-of-state DUI must be reported on an ARD application.  Some expungement laws require the destruction of all records, but other expungement laws mandate disclosure of the prior offense information on ARD-type applications.  Therefore, in order to determine whether or not a prior offense must be reported, the expungement law in the other state must be read carefully.  Failing to include information on an ARD application can actually lead to the filing of additional criminal charges.  The best solution to such complicated legal issues is to hire an experienced Pennsylvania DUI lawyer to provide representation.